THIRD SECTION

CASE OF MARKELOV AND OTHERS v. RUSSIA

(Applications nos. 42282/06 and 2 others –

see appended list)

JUDGMENT

STRASBOURG

13 January 2022

This judgment is final but it may be subject to editorial revision.

In the case of Markelov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Peeter Roosma, President, Dmitry Dedov, Andreas Zünd, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 9 December 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The Russian Government (“the Government”) were given notice of the applications.

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained of the unlawful detention (deprivation of liberty). In applications nos. 42282/06 and 25877/12 the applicants also raised other complaints under the provisions of the Convention.

THE LAW

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6. The applicants complained principally of the unlawful detention (deprivation of liberty). They relied, expressly or in substance, on Article 5 § 1 of the Convention, which reads as follows:

Article 5 § 1

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

7. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among numerous other authorities, Benham v. the United Kingdom , 10 June 1996, §§ 40-41 in fine , Reports of Judgments and Decisions 1996 III). It further reiterates that the absence of an arrest record must in itself be considered a most serious failing, as it has been the Court’s constant view that unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for his detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see, among other authorities, Fortalnov and Others v. Russia , nos. 7077/06 and 12 others, § 76, 26 June 2018). Similarly, the absence of any grounds or the time-limits given by judicial authorities in their decisions authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Khudoyorov v. Russia, no. 6847/02, § 142, ECHR 2005-X (extracts); Nakhmanovich v. Russia , no. 55669/00, §§ 70-71, 2 March 2006; Solovyev v. Russia , no. 2708/02, §§ 95-100, 24 May 2007; Shukhardin v. Russia , no. 65734/01, §§ 65-70, 28 June 2007; Belov v. Russia , no. 22053/02, §§ 79-82, 3 July 2008; Chumakov v. Russia , no. 41794/04, §§ 129-131, 24 April 2012).

8. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicants were detained in the absence of arrest records, contrary to domestic law requirements and the “lawfulness” guarantee of Article 5 of the Convention..

9. These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention.

10. In applications nos. 42282/06 and 25877/12, the applicants also raised other complaints under Article 6 of the Convention.

11. The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

12. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

13. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

14. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Biryuchenko and Others v. Russia [Committee], no. 1253/04 and 2 others, § 96, 11 December 2014), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.

15. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Peeter Roosma Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 5 § 1 of the Convention

(unlawful detention (deprivation of liberty))

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Start date of unauthorised detention

End date of unauthorised detention

Specific defects

Amount awarded for pecuniary and non-pecuniary damage per applicant

(in euros) [1]

42282/06

28/10/2005

Nikolay Nikolayevich MARKELOV

1966Natalya Vladimirovna ZAGITOVA

1957

27/03/2006

19/06/2006

(for the first applicant)

22/06/2006

(for the second applicant)

Authorities’ failure to specify the period of pre-trial detention (see Logvinenko v. Russia , no. 44511/04,

§§ 35-39, 17 June 2010).

When returning the file to the prosecutor for remedying defects in the bill of indictment, the first-instance court failed to indicate reasons and set a time-limit for extension of the applicants’ detention (see Khudoyorov v. Russia , no. 6847/02, §§ 144-151, ECHR 2005 X (extracts) and Ignatov v. Russ ia, no. 27193/02, §§ 78-82, 24 May 2007)

3,000

55770/11

18/07/2011

Vladislav Vasilyevich TEKHNYUK

1982Yefremova Yekaterina Viktorovna

Moscow

06/08/2009

07/08/2009

Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia , nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)

3,000

25877/12

05/04/2012

Viktor Alekseyevich AKIMOV

1963Druzhkova Olga Vladimirovna

Moscow

02/01/2021 20:00

03/01/2021

14:05

Detention (criminal) for more than three hours without any written record (see Fortalnov and Others v. Russia , nos. 7077/06 and 12 others, §§ 76-79, 26 June 2018)

3,000

[1] Plus any tax that may be chargeable to the applicants.